An Appraisal of the Legal Framework of Cybercrime in Nigeria
CHAPTER ONE
OBJECTIVE OF THE STUDY
- To ascertain the effectiveness of the present legal framework on cybercrime in Nigeria
- To comparatively appraise the situation in Nigeria with other jurisdictions with developed legal regime on cybercrime
- To proffer recommendations and solutions to identified problems and loopholes.
CHAPTER TWO
CYBERCRIME: CONCEPTUAL ANALYSIS
INTRODUCTION
The previous chapter of this work discussed the background information to this work, gave the research questions that the work seeks to answer, the objectives of the study, etc. This present chapter seeks to give a conceptual analysis on ‘cybercrime’. The chapter is divided into five parts. The first part seeks to define cybercrime, the second part would delineate the characteristics of cybercrimes and how it is distinct from traditional crimes. The third part would discuss the different classifications of cybercrime. The fourth part would discuss cybercrime and other related concepts. And the last part would give the conclusion to this chapter
CYBERCRIME
There has been a great dispute among scholars and experts on just what constitutes a cybercrime or a computer-related crime. A universal agreed-upon definition of cybercrime does not exist. At the basic level of analysis, there is no discernible control mechanism in place in so far as terminology is concerned. Thus, one might speak of ‘cybercrime’, ‘high tech crime’, ‘computer crime’, ‘technology crime’, ‘digital crime’ and ‘IT crime’ and be discussing the same and/or different concepts, respectively. Consequently, the term ‘cybercrime’ has rapidly become a generic descriptor for any online wrongdoing (whatever the relative differences in complexity and seriousness) ranging from spam emails and denial of service attacks to malware. Also, it has become especially common when dealing with computers to coin new words simply by placing the word ‘cyber’ ‘computer’, or ‘information’ before another word. Thus, this has led to creation of confusion among the related yet different concepts.
Nevertheless, cybercrime has been described as any activity in which computers or networks are a tool, a target or a place of criminal activity. But the problem with this definition is that it is too broad. For example, if one uses a keyboard to commit battery, it does not mean that a cybercriminal act has been committed. Also, according to the National Crime Prevention Council, cybercrime is any activity involving computers and networks. This definition is not very explicit because ‘any activity’ could also include an activity that is legal.
Computer crime has also been referred to as a crime where a computer system itself is the target. This definition is too narrow. Some cyber-crimes do not involve a computer system being the target of the operation. Sometimes, the computer system could just be a mere instrument in the commission of the crime. Another scholar defines computer crime as any violation of criminal law that involves knowledge of computer technology for its perpetration, investigation, or prosecution. Knowledge of computer technology is always but not necessarily needed for the commission of computer crime. Crimes like child pornography do not necessarily require knowledge of computer technology.
According to Sean Hoar, cybercrime is defined as a crime committed on a computer network, especially the internet. Loader also opines that, cybercrimes are computer-mediated activities which are either illegal or considered illicit by certain parties and which can be conducted through global electronic networks. This definition is quite flawed in the sense that cybercrimes are not always conducted through global electronic networks. Cybercrimes, like hacking, do not require global electronic networks for them to be perpetrated.
Furthermore, it has been argued that cybercrimes can either be defined in narrow terms or in broad terms. During the 10th United Nations Congress on the Prevention of Crime and the Treatment of Offenders, two definitions in terms of narrow and broad sense were developed. Cybercrime in a narrow sense was defined as any illegal behaviour directed by means of electronic operations that target the security of computer systems and the data processed by them. While cybercrime in a broader sense (computer-related crimes) is any illegal behaviour committed by means of, or in relation to, a computer system or network, including such crimes as illegal possession and offering or distributing information by means of a computer system or network.
CHAPTER THREE
INTERNATIONAL LEGAL FRAMEWORK ON CYBERCRIME
INTRODUCTION
As a result of the nature of cybercrimes and an undeveloped national legal framework on the topic, cybercrimes often occur internationally. Cybercrime legislation is plagued by a lack of geographically based jurisdictional boundaries. As Professor James Boyle noted, if the King’s writ reaches only as far as the King’s sword, then much of the content on the internet might be presumed to be free from the regulation of any particular sovereign. For instance, cyber criminals across the United States and Europe were indicted by a federal grand jury in May, 2000 for allegedly conspiring to infringe the copyright of more than 5000 computer software programs. These programs were made available through a hidden internet site located at a university in Quebec, Canada.
The jurisdictional problem of cybercrime manifests itself in three ways: (i) lack of criminal statutes; (ii) lack of procedural powers; (iii) lack of enforceable mutual assistance provisions with foreign states. The aim of this chapter is to discuss the international legal framework on cybercrime using the ‘convention on cybercrime’ and the legal framework on cybercrime in other foreign jurisdictions specifically, USA, UK and Canada.
CHAPTER FOUR
LEGAL FRAMEWORK ON CYBERCRIME IN NIGERIA
INTRODUCTION
In Nigeria today, the activities of cyber criminals have become a threat to the society. With the arrival of information age, legislatures have been struggling to redefine laws that fit crimes committed by cyber criminals. Initially, there were no specific laws in Nigeria for combating computer crimes. This led to the creation of an ideal environment for criminals to freely operate without any law to combat their criminal activities. It is a general principle of law that an uncodified crime is not punishable, as provided in Section 36 (12) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) which state thus
‘a person shall not be convicted of a criminal offence unless that offence is defined and the penalty thereof prescribed in a written law; and a written law refers to an Act of the National Assembly or a law of a State’
The factors involved in the prosecution of a crime under the Nigerian law emanates from one major source: legislation. As a result of this, the Cybercrime Act 2015 has been enacted for the prohibition, prevention, detection, response and prosecution of cybercrimes and for other related matters. Aside the new Cybercrime Act, there are laws that indirectly relate to the prosecution of cybercriminals. These laws include Economic and Financial Crimes Commission
CHAPTER FIVE
SUMMARY, RECOMMENDATIONS AND CONCLUSION
SUMMARY
This research work has succeeded in giving a conceptual analysis on ‘cybercrime’ by discussing the different definitions on ‘cybercrime’ proffered by different scholars. It also enunciated the substantive and substantial characteristics of cybercrime, in order to depict that it is a distinct phenomenon from what is known as traditional crimes. The work also conducted an analytical distinction between ‘cybercrimes’ and other related concepts such as ‘cyber-attack’ and ‘cyber-warfare’. Furthermore, this research work examined the classification of cybercrimes and also explained the various types of cybercrime such as dissemination of viruses, ‘phishing’, computer-related fraud, cyberstalking, hacking among other cybercrimes. The research discussed the international legal framework on cybercrime focusing on the ‘convention on cybercrime’, the legal framework on cybercrime in Canada, US and UK. In addition, the research work also discussed the various Nigerian statutes and institutions regulating cybercrime, making a comparative analysis with the foreign jurisdictions, with particular reference to the US jurisdiction.
RECOMMENDATIONS
- Legislation relating to cyberspace must be enacted with much precision in order to deal effectively with the acts of the cybercriminals. Information technology professionals should be involved at the law making process so as to help make laws that would be in line with the present level of technology.
- The public should also be well enlightened on how exactly computer systems and computer data can be protected. For example, the use of anti-viruses and passwords among the public should be encouraged. There are cases where the breaking into of a computer system is made to look as if it is from an unknowing victim who is unaware of anything, which is usually due to a virus installed on the ‘unsuspecting victim’s computer or easy access to the ‘unsuspecting victim’s computer due to lack of comprehensive security such as lack of comprehensive firewall, passwords and anti-viruses. The use of anti-viruses and passwords among the public would go a long way in enhancing computer security.
- Although Section 8 of the Cybercrime Act deals with unauthorized modification of computer data which would definitely include the use of computer viruses to modify computer systems and data, it does not cover the ambit relating to creation and distribution of computer viruses. Section 8 of the Act should be widened in order to effectively deal with the distribution and creation of computer viruses so as to help enhance computer security and combat cybercrime.
REFERENCES
BOOKS
- Ashaolu, D., Combating Cybercrimes in Nigeria in Ashaolu, D., (ed) Basic Concepts in Cyberlaw, (Velma Publishers, 2012)
- Brierly, J., The Law of Nations: An Introduction to the International Law of Peace (Oxford University Press, 6th ed. 1963)
- Cambridge Advanced Law Dictionary (3rd ed, Cambridge University Press, 2008)
- Clifford, R., Cybercrime: The Investigation, Prosecution and Defence of a Computer-Related Crime (Caroline Academic Press, 2001)
- Ferrera, G., et al., CyberLaw: Texts and Cases (Southwestern College Publishing Co, 2001)
- Garner, B., Blacks Law Dictionary (9th ed, Thompson Reuters Business, 2004)
- Loader, B., Douglas T., Cybercrime: Security and Surveillance in the Information Age (Routledge Publishing Co. 2000)
